Peter Wayner: You offer a number of proposals for keeping the layers of the Internet and the software world independent. The U.S. tried to pursue these same goals in the early part of the 1900s in the hope of limiting trusts and conglomerates, but much of that spirit has faded. Can you draw many lessons from the past?

Lawrence Lessig: Innovation always and only happens when the new is protected from the power of the old. The internet could take off only because the telecoms were not allowed to kill the competition; cable TV could thrive independent of the networks because copyright law was narrowed to mean that broadcasters couldn't leverage their power in broadcasting into control of cable.

PW: So it's not about monopolies or cartels as much as as the past and the future.

LL: Yes, these examples are not so much about "trustbusting" legislation. They are all about limitations on the power of the past to control the future.

PW: But surely the people who worked so hard in the past must be given something, if only to encourage new developers who want to have something when today and tomorrow becomes the past?

LL: I'm all for making sure that the "people" who "worked so hard in the past" be given "something." That's different from giving the companies of "the past" the power to stifle new innovation. We didn't give the horse-and-buggy industry the power to stop cars; or the railroads the power to crush commercial trucking. Why should we give (through government granted monopolies called "copyright") the labels the power to stop a new way to produce and distribute content? Or cable television the power to tilt the internet against new forms of video competition?

PW: Sometimes the future even helps the old alliances, if only because they're best prepared to take advantage of the competitive opportunities. The local phone companies complained about the Internet, but they've made a fortune on second lines. The coming of cable and satellite television has really helped everyone except the old broadcast networks and even they've benefitted. NBC has several cable channels. ABC is tightly aligned with ESPN. Is it possible that loosening copyright's grip might actually help the music industry?

LL: Would my proposals be "good for the industry itself?" Who's the industry? If you mean the existing labels? Then no, my proposals won't benefit them. If you mean artists and consumers, yes, the changes I describe would enable much greater innovation than is allowed just now, and that would benefit creators and consumers. I am not someone who believes that the future produces no losers. I just believe that the losers should not control the future.

PW: You open the book with a great example of the legal shackles that bind the film makers in Hollywood. I love the story of the chair designer who sued because his chair was in a film without his permission. Does it really make sense for an industry to push so many legal rights for artistic creations?

LL: It makes sense for those who can benefit, relative to others, from cumbersome legal regulation. Who is that? Old industries, protecting themselves from the new. A world where you need a lawyer to sneeze is a world where only the large and entrenched have the freedom to breathe.

PW: But sometimes the small fry can succeed. The freelance writers dealt the New York Times a big blow. I keep imagine that some coalition of artists will find a way to grab large, six figure damage awards from a label that underreported royalties. Do the large companies need to be wary of being branded pirates?

LL: There is a strong movement growing to resist the labels. In February, there will be a benefit for artists opposed to the RIAA, and there are many others who are increasingly frustrated with the existing system. But I'm not yet convinced the resistance will be enough.

PW: Could a car maker copyright their car and use the anti-piracy laws to destroy the competitive marketplace in replacement parts? Could they stop remanufacturing parts to save money? Do they have the power now to treat wrenches and screwdrivers as pirate tools? Does the DMCA apply to a car if you consider the fact that cars come with dozens of CPUs and millions of lines of code embedded in ROM?

LL: If the lawyers at Sony could convince Sony management that they should threaten legal action against an owner of the Sony dog, Aibo, then I imagine it is just a matter of time before car manufacturers start thinking "creatively" about ways to inhibit creativity in their field too. I would expect such claims to fail, however. Car companies have lots of lobbyists; lobbyists protect their clients against bad and destructive legislation well. Now if only WE could get some lobbyists...

PW: The computer industry used to work hard to expand the demand for their products. Intel used to claim that wooing new customers for the Intel PC platform made more sense than battling AMD. Where are their lobbyists now? The PC is about to be turned into a cable television box as the content industry pushes to destroy the power of the desktop boxes.

LL: For some reason, the computer industry has been cowed into believing that the future will only be allowed if computers perfectly enforce the control of content by copyright holders. Perfect control might protect the "architecture of revenue" (as John Seely Brown describes it) of these dinosaurs, but it will not produce the fastest growth for this industry.

PW: The car industry used to strive to destroy the replacement part market so they could make bigger profits off of their users. Now Ford, Honda and others are actively sharing information with the parts industry in the hopes of encouraging people to add some zip to their cars. They realize that the coolest customers demand an aftermarket for parts with enhanced performance and the only way they can satisfy these people is to support the marketplace. Does the car industry know something that the music industry doesn't?

LL: I think it is less about learning something than it is about facing real competition. Businesses are great innovators when the market truly disciplines them. The music industry (unlike the artists) has not yet had to face the market.

PW: The fashion industry is one of the last manufacturers left to afford New York City's astronomical rents. Yet they have no copyright protection for their creative work. Do you think that the lack of legal armor leaves them better prepared to compete in the world?

LL: Yes. What we have got to learn again is that ours is a system that favors competition, not monopoly. The free market is all about inducing competition, not about granting protections from competition. Sometimes, small exceptions to this principle are needed. But they must be kept small if they are to remain exceptions.

PW: I like to think of this as the Napster recession. If you plot the stock markets before September 11th, you can see that the crucial court rulings are almost like hinge points where the market bends up or down. The stock prices go up after a favorable ruling for Napster and drop afterwards. It's probably a bit silly to ascribe all of the market's zeitgeist to one company, but the end of Napster is really the biggest roadblock for the personal computer. Until Napster crashed, everyone kept predicting more, bigger and better things for the humming space heaters under the desks.

LL: This is an important and under discussed point. We have seen a dramatic crash in the market. Why? Most attribute it exclusively to "irrational expectations." But meanwhile there has been a very dramatic change in the legal environment within which the take-off occurred. This change must have had an effect.

PW: We've also lost the rational exuberance. Now, we've got to ask mother-may-I before developing any neat software? Why bother? Can we blame Hollywood for this?

LL: While it would be irresponsible to try to say with any precision how much is a function of the content industry lawyers, it is also irresponsible not to at least acknowledge that some part of this decline is due to the different way the law regulates the net. Laws protecting dinosaurs from the content industry are killing the opportunity for growth. Why? Only because the only thing worse than well paid lobbyists is well paid lobbyists with movie stars.

PW: Several people have suggested that it is silly for the computer industry, which generates hundreds of billions of dollars a year in revenue, to cower before the world of Hollywood which generates only a few billion dollars. Can you think of ways for Intel, Dell, Gateway and perhaps IBM to get together and buy out the recording industry? Maybe Intel could distribute grants or gifts to recording artists that let their music flow freely over Napster? Or perhaps they could sponsor their concert tours? Or maybe just buy a few record labels and put them out of business?

LL: Wait. There's "Hollywood" or "the labels" on the one hand, and then there are "artists" on the other. They are not the same. I think there is a rich and vibrant future for artists; it would be richer and more vibrant if it were not exclusively controlled by the labels. The problem today is that "the labels" have been held to have in effect the legal right to veto the future they don't want. This is the consequence of concentrations of almost perpetual copyrights. If they couldn't veto the future, then there would be many competing to attract artists and consumers, with the result that both would be better off relative to where they are today.

PW: My understanding is that the record labels at AOL Time Warner make little money. Maybe AOL should just roll all of that music into the extra content provided by the monthly subscription price?

LL: AOL could help define a great future, if it built off of the instincts from its past. Make it easy for consumers to get access to communities and content: here's the important feature that Napster and AOL shared.

PW: Many of the effects of laws are strange, disconnected and lingering. The Dutch, for instance, are big publishers of books in English, a language that isn't really their official tongue. Even today, some of the biggest publishing firms are in Holland, not London or New York. Some date this juggernaut to the days of the English star chambers where secret courts told printers what they could and couldn't print. In light of historical examples like this, do you think the content czars in Hollywood are behaving rationally and trying to maximize their shareholder's profits?

LL: Yes, they are. But "their shareholder's profits" is not the same as the profits of a nation as a whole. Protectionism always harms the nation to benefit a favored few.

PW: But I would argue that the protectionism even hurt the British publishers too. I think it's kind of odd for a small country with a different official language to have such a large presence in English language publishing. But they do. And the German presence is substantial too. Shouldn't the British publishers wonder whether all of the protectionism robbed them of the ability to fend off the folks from the continent?

LL: The problem is protectionists will always think that any problem is caused by imperfections in protectionism, not by the imperfections of protectionism. We need to give up the idea that they will ever understand what good policy is, and focus instead on what good policy is.

PW: A few of the hottest directors in Hollywood are coming from countries with no tradition of respecting copyright. Should we view the success of directors like John Woo and Ang Lee as proof that pirate dens like Taiwan and China are comfortable spawning grounds for artists?

LL: That's too big a jump for me. I don't believe the choice is between zero protection for copyright and perfect protection for copyright. That's the choice Valenti and Rosen would have us make. I think there is an important role for a strong but limited copyright law to play; I therefore don't think people should get away with massive and broadscale piracy of other peoples' work. But I also don't think it is piracy whenever I use someone's work in a way that person hasn't authorized. Perfect protection kills innovation, just as the perfect absence of protection kills innovation.

PW: Much has been made about the decline of CD sales since the destruction of Napster. I think the problem is deeper. While they sell plenty of CD's, much of the growth comes from higher prices. There are other indications that the industry is losing the ability to engage the fans. The concert business is in a real slump. Most of the bands playing arenas and summer pavilions are leftovers from the 1980's. There just aren't that many bands that manage to get people to stand in line for tickets. Why can't the industry produce stars anymore? Is there no economic incentive? Or does the increasing concentration of power destroy the artistic marketplace's ability to discover talent/value?

LL: There is a deep cynicism about managed culture, and this is our modern popular culture. A kind of sovietism that worked. Passion for artists is reserved for those artists who have made it outside the managed track. There are many such artists, who promise a greater threat to the managed label system than the internet itself.

PW: Ah, sovietism. That's an excellent word. There really is that committee-made feeling about the packaged quality of modern music. The music industry likes to borrow many words and metaphors from the free market people. They talk about efficiencies of scale, synergy and distribution mechanisms, but in the end there's just a small committee deciding what we hear. It 's not really a marketplace anymore.

LL: It is control by a relatively few, in a world which could allow much greater freedom to the many. What possible justification could there be for protecting the power of this few, when the technology could allow so much more for the many?

I personally find the subject to be quite scary. The internet is no place for lawyers... I don't want some MS person bribing a government official to make a law ala DMCA saying that if I'm not running Windoze I can't run a DNS server or something... Personally, I think that lawyers and politicians need to keep their hands off of the 'net because they simply fail to understand it on a level necessary to make intelligent laws. If you want to pass a law saying no tax on the net, that's fine with me, but if you want to start regulating how I can use the net, you can just go to http://www.disney.com and talk to Mickey.

Personally, I think that lawyers and politicians need to keep their hands off of the 'net because they simply fail to understand it on a level necessary to make intelligent laws.

That goes for just about anything in life. Anyways... if only it were the politicians making the laws... that power is now (for all intents and purposes) in the hands of special interests and lobbyists.

Or, if you're a Canadian like me, Canadian laws are drafted by US special interests and lobbyists. Yay.

We need more lawyers on our side to be able to effectively communicate the right thing to the legal system. We live in a world dominated by the law and we can't change that without a civilian war. We need to play by the rules and that means getting lawyers who understand the issues and are willing to express them in legal terms.

Lawyers aren't the problem.It's the old entrenched companies who are paying for them. Lawyers are a tool we need to use.

Politicions just follow the money and votes. Educate more people about the issues and get them to vote for the ones with a clue. Spend more money on the right politicions through lobby groups. They'll get the message if enough people care.

That goes for just about anything in life. Anyways... if only it were the politicians making the laws... that power is now (for all intents and purposes) in the hands of special interests and lobbyists.

If you look at many legistlatures, a sizable portion of them have membership that are in fact lawyers.

discount any morality they may have, and you get a bunch of crooks making the laws.

But see the thing is, the lawyers are here. Not only are they here but they are backed by some of the largest, strongest and political companies that exist. They are bring the fight into the court rooms and capitals and they are finding a weak resistance from those who disagree with them. Groups like the EFF and the Center for Internet and Society can only do so much without more support. It kinda sucks that the only response to lawyers is more lawyers but thats the rules of the game.

I hope that you and others will realize just how scary some of things that are happening in the backwater bars of D.C. We all need to take a part if we are to stop this.

Please support the EFF, they are one of the only groups out there that are actually looking after you and me.

The interview seems rational. I was at his debate with Valenti, and his position has stayed constant -- limit the term and reach of copyright. Valenti tried to paint LL's position similar to RMS, "no protection allow everything to be copied."

The studios/establishment wants absolute protection for ever. Lessig is saying, not forever, but for long enough to make a good return, but not too far to prevent commentary, satire, critism, and other fair use during the limited period.

These are fairly obvious points. Companies that are not prepared to take advantage of new competitive outlets will obviously try to stifle them.

On the other hand, they're very good points. Current copyright law is so bloated, ambiguous, and restrictive, that I think we are in real danger of stifling future creative and technical endeavours. Take Lindows OS. Merging Windows software selection with Linux would be a beautiful thing. But one bullshit copyright suit later, the whole thing starts looking very unlikely.

Is the concert industry in a slump because of the limitations that PW and LL discuss, or is it just because few concerts are worth the spiraling costs of attendance? When I was a kid you could see just about anybody for less than 20 bucks. What do most shows cost these days, $75 and up?

almost no one is worth $75. I refuse to pay more than $27.50 for a ticket and I really hate to even do that.

They bitch and moan about how they never make enough money when we are stealing their CDs via MP3 and they whine about how they are going broke b/c no one sees their concerts...

Ok. Couple of things.

1. most people suck hardcore live.
2. they never fucking tour enough.
3. the venues have terrible acoustics
4. putting up w/a bunch of teenie bopper pain in the ass kids
5. getting searched for every known narcotic and bomb when you walk in the door
6. paying a ton of money to see a show, then not being allowed to bring in your own beer, only to have to pay $3.50 for a cup I could fill w/my piss from the last beer in less time than it takes them to pour this one after waiting in line for 20 mins and missing a 1/3 of the second set.

You can still see some really good bands for less than $20 a ticket. The high price shows are the bigger name, or more popular, (not necessarily better) bands, and the older ones who still think that they're worth the money (most of them aren't). Quality from the independents seems to be increasing, while the stuff that the big companies are putting out seems to be decreasing in quality. Maybe the smart, good, artists are getting a clue?

I remember when going to a concert was to listen to a good band play live, not the theatrics. Britney has some nice tits, but I can go to Hooters and seem some up real close for the price of some wings. The bonus is the female attached to 'em will even talk to me.

I must agree with your insightful remarks here - I don't go to concerts by major artists any more, and I never cared about a concert being a multimedia extravaganza with huge video screens and zillions of dancers and smoke and lasers. I care even less to pay upwards of $75 a ticket. I don't have $75 to blow on a concert ticket, and even if I did I'm sure I can come up with something more interesting to do with the money.

On the other hand I went to three concerts this year. The tickets to each concert cost $15 each. At two of the three there was no assigned seating, at the third I got the tickets late and got crummy seats. The band I went to see [efohio.com] didn't use lasers and barely had any change of lighting, they don't have any dancers, and there were no huge video screens. They bring their sound guy with them and that's their entourage.

The concerts were sold-out and the crowds were ecstatic and everyone left happy. At one concert in a small venue, so many people showed up that there were people sitting in the trees outside the windows to see the concert. After two of the three concerts, the band came out to sign autographs and chat with the fans.

They charged less. They used less. They performed well so we felt that we got more for less. Their audiences keep getting bigger and they keep playing bigger venues and more gigs. Who's losing?

I read a study about that matter a year or two ago. The study found that the ticket prices had little to do with production costs, but varied according to the popular demand each singer recives. In other words, Britney Spears tickets costs 110$ because the promoters think they can get away with it.

This "predatory pricing" (if you want to call it that) is in response to ticket scalpers who sell the tickets for their "true" market value. Concert promoters thought, if we sell the ticket for 30 and a scalper resells it for 100, then we are missing 70$ profit. They responded by jacking up the prices to scalper levels, even it if means the possibility of unsold tickets.

So the answer is that tickets are so high because too many jackasses are willing to pay. IN other words, Top 40 singers cost a lot, while other singers with less promotion and big label support have to take smaller venues and charge less. One may be indignant at the unfairness, but ultimately this is better for the discriminating consumers. Isn't it?

Speaking from ignorance, since I haven't kept up with concert prices, I think that the high-priced concerts are the ones appealing to older (over 30) folks. Bjork, U2, Depeche Mode, are now thrown in the same bin as Barbara Streisand, Neil Diamond - wealthy aging fans will pay anything to see. I did read an article about how promoters are raising prices to find the breaking point. They did actually overprice tickets a few times, resulting in undersold shows.

Forget the big arena concerts. I see most of my live music in clubs. Sometimes I get a dinner and drinks in addition music. Most music sounds a lot better in such setting (not heavy metal). Sometimes during intermission you can talk to the performers, buy CDs directly and get them signed.

In the past year I saw Mick Taylor, John Mayall, David Bromberg and Debbie Davies. Tickets were $20 each and the shows were excellent!

I saw lots of local concerts in 1993 in Portland Oregon for $5 and small national acts (King Missle, Mazzy Star) for $10-$15 (same venue, La Luna).

In the same year, I saw a triple bill of the Beastie Boys, Sonic Youth, and L7 at the Salem Armory. I believe the ticket cost was around $18.

I submit to you that the cost to see the "blockbuster" national acts has always been unreasonable, but lately even the small national acts are unaffordable. I'd wager this is because of the consolidation and anti-competitive practices occuring in the promotion industry more than anything else.

"I like to think of this as the Napster recession. If you plot the stock markets before September 11th, you can see that the crucial court rulings are almost like hinge points where the market bends up or down. The stock prices go up after a favorable ruling for Napster and drop afterwards."

Ok, I'll bite. I disagree to a point on his thoughts here. Napster was a nifty piece of software that did revolutionize the way people looked at computers. However, there is a lot more to the (I assume he is speaking of pc companies' stocks) decline in sales than Napster. How bout this recession we are in because any idiot with a half-baked idea could get millions in venture capital and then blew it when the dotbomb mess happened? People lost a LOT of jobs then. When your money is tight, your entertainment expenses tend to drop lower as well. Rather than go buy a new computer, people are making do with what they have. Not to mention the fact that this is a finite market as well. Once everyone has a computer, you can't expect sales and marketing to help much, people won't buy a new pc without a good reason. Napster may have been that reason for some, but I don't buy it. My $0.4

I think the point regarding Napster is the court rulings against it kind of "woke up" the less technical crowd to the Internet. It no longer was a magical playland where anything and everything could happen, without hinderance from real life (read: the man).

People realised that if the wonderful world of free music could go away, then www.eMonkeySales.com probably wouldn't stay for long either....

He's not saying Napster is responsible for the recession, that if Napster had made money, so would others. He's saying that the copyright crackdown on Napster stifled a lot of creativity in the dot com boom. And it wasn't just the Napster crackdown, it was DeCSS, Felten, etc. He says the general tightening of the RIAA/MPAA noose may have scared a lot of dotcommers and vulture capitalists, and stifled creativity. A side effect would be to lessen perceived demand for broadband and reduce corporate investment there too.

My own take is that the recession was predictable (as I myself thought in 1999) based on companies advancing their upgrade schedule to meet Y2K problems, and thus not needing to invest in upgrades for a year or two afterwards.

He's saying that the copyright crackdown on Napster stifled a lot of creativity in the dot com boom. And it wasn't just the Napster crackdown, it was DeCSS, Felten, etc. He says the general tightening of the RIAA/MPAA noose may have scared a lot of dotcommers and vulture capitalists, and stifled creativity.

Dead right. Hilary Rosen made this sparkling clear once when she was asked at a news briefing why Napster was being sued. She said: "we are sending a message to those venture capitalists who are thinking of investing in peer-to-peer technology."
In other words, forget about any kind of innovation in content distribution - we are the ones who will allow what does and doesn't happen. Lessig has explained in some detail what happens when existing infrastructure owners stifle new innovation in his excellent speech "Architecting Innovation" which he gave last year.

Napster was a nifty piece of software that did revolutionize the way people looked at computers. However, there is a lot more to the (I assume he is speaking of pc companies' stocks) decline in sales than Napster. (Emphasis mine)

Napster was more than just a nifty piece of software, friend, you said that yourself. The current content providers control the river of content by blockage - copyright, lobbying for stronger content protection and litigation. Napster was a big crack in the content dam - it truly did start the public to think more about the communications device on thier desks, and what it could do for them.

In order to protect "thier" river, the RIAA and it's ilk had to seal that crack - for as we all know, a small crack in a dam can cause the whole thing to fail, and the river then flows as it wants, without control.

The current content "owners" showed that they can and will squash anything that may affect their control of "thier" river of content. Then, new possibilities for the Internet and the PC were suddenly curtailed in the eyes of the public, who instantly reverted back to a "same shit, different medium" instead of imagining future possibilities for thier PC and the Internet. The Internet boom was dependant on that optimistic attitude, and ergo -.com busted.

Mr Lessing's point is just that - the Old Economy stalled the New Economy, in order to be able to stay in control and direct it to thier own ends. Napster was the litmus test for the New Economy replacing the old, and it failed.

How bout this recession we are in because any idiot with a half-baked idea could get millions in venture capital and then blew it when the dotbomb mess happened? People lost a LOT of jobs then. When your money is tight, your entertainment expenses tend to drop lower as well. Rather than go buy a new computer, people are making do with what they have. Not to mention the fact that this is a finite market as well. Once everyone has a computer, you can't expect sales and marketing to help much, people won't buy a new pc without a good reason. Napster may have been that reason for some, but I don't buy it. My $0.4

Obviously you're right that some of the dotcom crash was quite necessary and had nothing to do with the Napster ruling. But the point you're forgetting is that the dotcoms started to crash in the spring of 2000, and for a while it was pretty well contained: the dotcoms themselves (mostly just the bad ones) with some collateral damage to Sun and Cisco once they actually started going under in late 2000.

But the huge drop in consumer PC sales and consumer broadband didn't happen until spring 2001--until the Napster decision, almost precisely.

And it makes sense: you take a service that went from 0 people in fall 1999 to IIRC 80 million in spring 2001, many of them buying new computers, new CD burners, and/or broadband connections to use Napster, and then you suddenly take that impetus away, you're going to get a big problem on your hands. Indeed everybody had been saying for years that new computers weren't needed because there was no new killer app...but there *was* a killer app, Napster. Napster is the reason that every computer comes with a CD burner now, and DVD-ROMs are just optional. When I bought my last computer 3.5 years ago, I bought it with a DVD-ROM, because everyone thought they were going to replace CD-ROMs very quickly. But they didn't, and the reasons why were, in 1999, the introduction of the sub-$1000 computer, which kept CD-ROMs standard, and in 2000, Napster, which made CD burners standard.

So, again, the broadband and PC markets dropped in the wake of the Napster decision, like a rock. And of course the most ironic thing is that the music industry's sales did exactly the same thing--they were rising, at a record pace no less, throughout 2000 and Q101...but then, directly after the Napster decision, they turned negative and have plummetted ever since.

Of course everyone attributes this to the lack of good music (except the labels, who somehow attribute it to "piracy" even though it happened just as they killed off most music-sharing). But that just begs the question whether the existence of a free open venue for sharing music didn't help more people learn about more bands, and help more bands get more buzz and make it big. It's surely a better explanation than "all creative people with musical talent died or retired or got writer's block in mid-2001."

The saddest part is that the so-called free-market system does nothing to correct this tremendous self-induced mistake on the part of the record labels. Sure they're getting punished for it, but the end result of that is just that some will sell themselves to others and instead of the big 5, all our music will be controlled by the big 3 or the big 2. An even more concentrated monopoly will only mean increased lobbying power, an even more desperate insistence on rewriting the law to protect their obsolete business model, and even less chance of innovation or competition.

The point is not that the free market cannot coexist with government regulations; I agree with Lessig that some form of copyright is necessary, although I would revert to the pre-1990 style which essentially exempted non-commercial copying from infringement charges. The point is that the free market does not work when the current business leaders are able to buy laws to protect them from future conditions. Perhaps the whole Enron mess will lead some people to question that...but somehow I doubt it.

Well...Wall street has been saying for sometime that broadband will be the next big thing. Napster, for all its flaws, could have been an agent for bringing middle america into the broadband age. Many companies bet a lot of money on the majority of people having high speed access to the internet. These companies lost a lot of customers when Napster was shut down.

This has a cascading effect. If everyone had broadband, we'd be seeing a lot more high quality multi-media applications. These applications don't run too well on those old PII's. Napster in and of itself probably wouldn't have caused people to upgrade their computers. But Napster was just the leading edge of the sword. Following in Napster's footsteps would have been movies on demand, interactive television and a whole lot of other innovations (combined with a whole lot more spectacular failures). Napster + ICraveTV + the promise of future online entertainment might have made a lot of people upgrade.

I don't think it is too far out there to say that a massive broadband expansion might have kept the economic ball rolling. It might have made the fall that much harder once it came, but we'd probably be doing better today than we are now.
</my_$0.01>(it's a recession...I can't afford the full $0.02)

Yes. My entertainment dollars are less. So I'm less inclined to purchase a CD without knowing the content. Thanks to Gnutella, I was searching for some old Ritchie Blackmore songs. I found this group called Blackmore's Night. Yes it is Ritchie Blackmore in a new style. I really enjoy the music and I am now purchasing their CDs. I never would have heard this music without the internet. So through my desire to get a free (yes stolen under current law) copy of a song I found some new music to enjoy. A new incarnation of Ritchie and I plan to keep purchasing their CDs to reward them and hope they produce more.

While I think the interview was tantamount to preaching to the choir around here, I think Mr. Lessig quite eloquently makes the arguments sound reasonable.

I still want to know if there's any chance lawmakers are listening when these talks come out, or if wonderful voices like this are drowned out by the cash of the RIAA and MPAA lobbyists. And what can we do? Writing letters goes only so far (lately they've been going to the "check for anthrax heap".) The current Administration has shown an amazing abilility to empathize with the big oil and energy industries. Should we expect any less regal treatment of the next MPAA petitioner?

I still want to know if there's any chance lawmakers are listening when these talks come out, or if wonderful voices like this are drowned out by the cash of the RIAA and MPAA lobbyists.

Legislators need cash and votes, not words. However the words are important to construct a framework for cash and votes. Also, no amount of cash would make legislators oppose copyright in the name of helping "pirates". They need a system of thought that justifies their legislation. In other words, the "wonderful voices" are necessary but not sufficient.

We should beware of stigmatizing campaign finance as evil or corrupt. Legislators need money to get elected. This is not money for yachts and mansions; this is tactical money, used to get to the finish line. If we want to reach legislators we have to respect the realities of their lives.

Who has more money, the entertainment industry or the readers of/.? Possibly us. If we could pool some of that money and direct it into good lobbying efforts, we might be able to buy our own gaggle of congressfolk.

Not to give a dissertation, but after learning in World History classes where copyright came from, I saw clearly where it goes wrong for the Internet.

Modern copyright laws originate from the French Revolution, where publishers were granted the exclusivity rights we all know about. Publishers, not artists.

How would your boss respond if your business' web page was copyright Rackspace? You'd probably self-host quick (not that I'm saying many don't already, but it shows the difference).
Copyright law is a holdback to when it was highly difficult to publish; in the internet age, it needs to be reconsidered. After all, does everyone's weblog need life+70 years of protection when the data often isn't interesting or relevant for more than about 10 years?

Right - an employee of a software company basically agrees to give the copyright of everything he produces on company time to the company, as a condition of getting hired. Seems reasonable to me, do you think it should be illegal? Nothing is forcing the employee to do this - he can work for himself and retain his copyright, or he can work out a different agreement with his employer. It's all voluntary.

You are right; I was wrong. Thank you for correcting my historical errors. However, this doesn't change my main point, which is that copoyright originally protected the publisher, not the artist/author.

Was it just me, or did this sound less like an interview and more like two guys who agree making alternating points? I don't have a problem with that, they made some good points, but it really didn't seem interview-y.

I'm hoping that we get a reversal of the Mickey Mouse extension and reduction in the number of years of copyright to say 10. We are losing too much old software. Books aren't becoming public domain (the original intent) for another 17 (or is it 50) years.
I'd even be in favour of software copyright only being 5 years. That would put more presure on patents but that's a different battle.

Car companies have lots of lobbyists; lobbyists protect their clients against bad and destructive legislation well. Now if only WE could get some lobbyists...

I'd be more than willing to pay a tax that goes straight into some sort of government program that pays for lobbyists to represent my interests against those of big business. Legislators would have to listen, big business may control the campaign funds, but the final say is with the people. Does such an organization or a similar one exist already? If not I may have to start writing letters to my Congresspersons.

Good god! The last thing I want is something in MY interest to be run by an organization that has nothing but it's own interest in mind. The government is the last place I want my interests "assisted"

It's bad enough that I can't choose not to participate in government projects that are going to lose my money (Social Security) Now you want me to pay more taxes to a government project that gets to tell lobbyists (and pay them!) what it is I want lobbied for and against. weeeeee!!

Why is it that so many people think the government is the end all be all of "helpful organizations" or my favorite: "for the people by the people"

The government stopped being for and by the people when it started charging us taxes. The government stopped (...) when they made the US postal service a legal monopoly. The government (...) when they snuggled right on up to big business and said... how can we make you more money, so you can make us more money?

Do you REALLY think your government wants to protect your best interests from big business? Think about the alcohol and tobacco industries. Do I think you have the right to choose to smoke? Yes. Do I think you have the right to smoke in any place where a non-smoker has a right to be? NO. (So why is it taking so long for the government to pass laws restricting where/when you can smoke? They did it with alcohol! But then again, prohibition put the burgeoning alcohol companies in there place.) If alcohol had as much money then, as tobacco had when it was found harmful do you think prohibition would have happened?

Tobacco is one of the biggest money makers for the government (and of course the businesses). Do you think the "artist industry" isn't right under tobacco on the list of government moneymakers? And if it's not, you know the government is lookin for ways to put it on that list. And the industry wants to be there (to protect their best interests, of course!)

Just like all things highly profitable and well entrenched, "We the People of the United States" need to get together behind something to get it changed. And by together, I'm talking 85% and more.

You already have goverment employees who are supposed to be representing your interests: they're called your elected representatives. You pay their salaries, and your votes put them in office.

If they don't seem to be doing a good job of that, maybe you should think some about why that is before you advocate hiring another set of goverment employees, not even directly answerable to you the voter, whose job it would be to try to persuade that first set of employees to do their jobs more to your satisfaction. And who's going to decide which side of which issues those goverment lobbyists will work on?

Or you could do what you're supposed to do in order to influence your representatives: get out there and participate in the political process. Donate time and/or money to organizations that are already lobbying for the policies you favor (or if there aren't any, go out and found one).

You already have goverment employees who are supposed to be representing your interests: they're called your elected representatives. You pay their salaries, and your votes put them in office.

I see the Congresses lack of representing my interests as ignorance rather than uncaring. All our these representatives are constantly being bombarded by these lobbyists from big business who tell them "we need this and that." Failing to see the conflict with their constituents interests, the representative supports the side of big business. I may not be giving the representatives enough credit for their own intelligence and motives, but it doesn't seem likely to me that every Do-Gooder I vote into office is somehow corrupted by those whose interests are at odds with mine. I do, however, acknowledge the possibility, and under such circumstances I agree with you, they should be voted out of office.

And who's going to decide which side of which issues those goverment lobbyists will work on?

There are some highly controversial issues such as abortion which two groups of citizens are at odds over. Such issues would be no concern of the organization I'm talking about. In cases such as the DMCA, however, I have yet to see a citizen who has advocated it. The organization would only make itself present to defend citizens against legislation that is highly parasitic to their rights and beneficial to big business. Sort of a balancing factor against big business lobbyists.

Or you could do what you're supposed to do in order to influence your representatives: get out there and participate in the political process. Donate time and/or money to organizations that are already lobbying for the policies you favor (or if there aren't any, go out and found one).

Part of the reason we have representatives is so we don't have to deal with the political process. As you pointed out the best way to influence it is with time or money, and being a college student my supplies of those resources are stretch thin as is. One thing I can and often do is sign petitions.

I already write to my congresspeople. All I get back from them are stupid form-letters that prove to me that they had no idea what I said. They must just have staffers scan them for keywords and tack my name onto a list for whatever form-letter they think is appropriate. It's fucked up. All I can do is vote against them and tell my meager group of friends and family why I'm going to vote against so-and-so (if I can do so with a fairly clear conscience, sometimes the alternatives are actually worse).

promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

[emphasis added, of course]

Clearly the existence of intellectual property was not intended by the framers. The above (to me) pretty strongly implies that their feeling was that granting such exclusive rights to ideas was an evil necessary to encourage the generation of new ideas. If you asked them, they would say to make the "limited time" as short as possible. Intellectual property isn't one of those inalienable rights an inventor is entitled to, but rather a license granted by Congress as a reward for their innovation. Nowhere in the Constitution does it say that there is an inherent right to ownership of ideas. To rephrase Proudhon: Intellectual property is theft.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors...

...If you asked them, they would say to make the "limited time" as short as possible...

If Congress is free to extend the term of copyright at will, then by definition of "limited", then that term is not limited. But Congress has repeatedly extended copyright term during my lifetime, to the extent that no work has had its copyright term expire during my adult lifetime, nor can I expect any to expire during the remainder thereof. So not only does it fail the mathematical definition of "limited" (I'm a math Ph.D, and I studied under some of the best mathemtical logicians in the world; I speak with authority here!), it also fails the operational definition: there is no experiment I can perform that will distinguish between the current state of affairs and a state with unlimited copyright term.

The Constitution is the Law (it says so right here®), and the publishing industry, the Congress, and the courts are all a bunch of lawbreakers!

But Congress has repeatedly extended copyright term during my lifetime, to the extent that no work has had its copyright term expire during my adult lifetime, nor can I expect any to expire during the remainder thereof.

Your adult lifetime must be pretty short, then, and your life expectancy pretty poor. Before the "Sony Bono Act" was passed in 1998, plenty of works were falling into the public domain each year that had been published more than 75 years before. (i.e. a book published in 1920 would have gone into the public domain in 1995.)

In most cases, the Bono Act extended the term by an additional 20 years. So, depending on your age and general health, you might reasonably expect some materials to enter the public domain 20 years after the Act was passed-- another 17 years.

The situation does get ugly with respect to the term of unpublished works, however, and you are correct that the term has been increased more than once during the term of protection of many existing works.

Wrong - before the CTEA coyrights were extended 10 times, 9 during the sixties and early seventies, the 10th being the revision of 1976. Works due to enter the Public Domain in 1979 were given a 19 year extension, reaching to (surprise, surprise) 1998 and the 1976 revision eliminated the requirement of renewal so that ALL copyrights ran for the entire term. I don't think anything has entered the Public Domain since 1978.

And do you really think (if the CTEA is declared within the powers of Congress) that Disney will let up? I expect the Entertainment Industry to be back before 2018 for another extension. It is entirely possible that nothing more will EVER become a part of the Public Domain.

No, I'm sorry. You are incorrect about copyrights not having entered the public domain since 1979. I have no disagreement with your other points.

Here's the 1997 (pre-Bono) version of 17 USC 304, at section (b):

Copyrights in their renewal term or registered for renewal before January 1, 1978. The duration of any copyright, the renewal term of which is subsisting at any time between December 31, 1976, and December 31, 1977, inclusive, or for which renewal registration is made between December 31, 1976, and December 31, 1977, inclusive, is extended to endure for a term of seventy-five years from the date copyright was originally secured.

This means, in 1997, a work published in 1922 or before would be in the public domain.

The section quoted above was first made effective in 1976. Previously, a copyright would have a term of 28 years with a renewal term of 28 years. That means, in 1977, a work published in 1921 would have been about to expire, but instead its period was extended to 1996. The Bono Act, as we all know, was not passed until 1998.

I'm not arguing at all with your concerns that when 2018 rolls around, someone will have lobbied for another extension. (The above actually supports your position.) I'm just pointing out that a few materials have entered the public domain in recent memory. And as for doing something about it, I'm doing my best. I even called the White House repeatedly in 1998, begging Clinton to veto the Bono Act-- not that it helped.

Here is a chart of when various materials go into the public domain, as prepared by copyright expert Laura Gassaway:
http://www.unc.edu/~unclng/public-d.htm

Here is another explanation of when materials go/went into the public domain, as explained by a law professor at Arizona State University:
http://www.law.asu.edu/HomePages/Karjala/Opposin gC opyrightExtension/publicdomain/SearchC-R.html

As for doing something about it, I have and I am. I hope everyone else does the same.

So basically, anything before 1923 is public domain. Anything since is subject to our current eternal copyright? That doesn't make me feel any better. And it still means that everything created in my lifetime will still be under copyright when I die. Somehow that just doesn't seem to jive with what I think copyright was intended to do.

The framers of the Constitution also included the existence fo slavery as a valid institution, and counted slaves and indians as "partial" people for purposes of the census. The bottom line is that we should ask whether something is right or wrong, not whether or not it's in the Constitution. Plus, in an attempt to set straight an error I see made again and again, anything *granted* by a government is a *privilege*, not a right. Rights can't be granted, they are either recognized or not. Philosophical flubs like that are the "they're/their/there" of the political spectrum..

This is true. And they knew that people's opinions of right and wrong would inevitably change over time. Which is why we have the 13th, 14th, and 15th Amendments, which abolished the slavery that was allowed by the original Constitution and Bill of Rights. So if Congress wants to go ahead and ignore the "limited" part of that article, guess what? To make it "right," we need an Amendment. Could you imagine a 28th Amendment stating what is effectively true today:

Congress shall have the Power....
To grant exclusive rights and complete control to Authors and Inventers to their respective Writings and Inventions for as long as they wish to maintain these rights.

And that just won't fly. Either they should obey the law of the land as it is written or they should change it. The slavery argument is a false analogy.

PS - I used "right" because that's what it said there. Since it was qualified with "secure" and "exclusive" it seemed to be clear enough.

It is true that slavery existed when the original articles of the Constitution were written but nowhere does it actually use the phrase slaves, Indians, or Native Americans. It mentions that other people should be counted as 3/5ths for the purpose of apportioning congressional representatives on the basis of population. This did not condone or condemn slavery.

The constitution also stated that Congress could not ban the importation of slaves until 1808. This looks to me like condoning slavery -- but hoping it would go away in a few generations. The position of slavery in the Constitution is the result of compromises recognizing the impossibility of righting long-standing wrongs all at once. Many southerners such as Jefferson were for ending slavery in principle, but in practice they couldn't see a way to do it in less than 50 years without the whole south going bankrupt. (It wasn't just the south: For instance, New York state passed a law freeing slaves one birth-year at a time. This didn't free Sojourner Truth until the late 1820's, 50 years after the Revolution started. But AFAIK no large property holders went bankrupt because of freeing their slaves...)

So the founding fathers were uncomfortable about slavery, but not sufficiently so as to free the slaves at once and bankrupt the slaveowners. (Tax receipts were nowhere near enough to allow the government to buy them out.) Nor would they risk a rupture with the more adamant of the southern slaveholders by cutting off importation immediately and making it clear that slavery could only continue for a limited time -- a southern secession at that point (or mere failure to ratify the Constitution and give the central government enough tax revenues to maintain an army & navy) could have wound up with _everyone_ being enslaved by King George or some other European monarch...

Note that in 1776, slavery was legal virtually everywhere in the world; England was the first nation to finally ban all slavery around then (there were very few slaves left to be freed), serfdom (white agricultural slave labor) was common in several European countries, and in Russia serfs could still be sold at auction. It was expected that, just as economic and social factors had ended slavery and serfdom of whites in England and other "advanced" European nations a few centuries before, black slavery was going to wither away naturally as the nation grew. And to help hurry this along, the better class of southerners (Lees, Jeffersons, Washingtons) often freed their slaves in their wills (it's one thing to do something when you choose to, and quite another to be forced to by new laws), and the importation of new slaves was stopped as soon as possible while keeping the southern states in the union. With no new imports of slaves, some people freeing their slaves every year, and a rather low reproductive rate among slaves up to that time, they expected to have less slaves every year after 1808 until owning men became rare enough to be a serious faux pas...

The problem is, the invention of the cotton gin in the US turned cotton from an overly costly specialty fabric to one of the cheapest sources of fiber for cloth. This coincided with inventions in textile milling, which greatly reduced the cost of turning the ginned cotton into clothes. Suddenly people of ordinary incomes could buy different clothes for each day of the week. (Previously the poor basically wore one set of clothes until they rotted off, then begged or traded for cast-offs, and even the moderately rich had fewer clothes than a modern welfare queen...) The demand for cotton skyrocketed. Southern landowners could make real money at last, if they could get the brutally hard labor done in the fields -- but most free men would rather take their chances on the frontier than work the cotton fields. So the south imported a lot more slaves than expected before the 1808 deadline, and provident slaveowners set about encouraging their "servants" to reproduce. Yankees were horrified and moralized incessantly, southerners invented all sorts of specious arguments to defend themselves, and so it drifted on until the southern US and Russia were the only places remaining where European Christians were so backwards as to own other men... And the southerners had so convinced themselves they were right, that they were ready to kill over it.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

I will play the Devil's Advocate for a moment here:

I am sure that Jack Valenti would argue he is not asking for an indifinite copyright term (not yet anyways), but merely one that permits his organization members to receive an adequate return on their investment. If those copyright holders do well, they can employ more people if they issue dividends to the shareholders, that money goes back into the economy. That's good for all of us. As Jack said, how does it hurt anyone to extend the copyright protection on Mickey Mouse for a few more years?

(Personally, I think that arguement is crap, but sounds like something his group would support.)

On a completely different topic: maybe it's because I am not a USian, but why are the authors of the US constitution referred to as the "framers". Isn't that a tad over-dramatic?

As Jack said, how does it hurt anyone to extend the copyright protection on Mickey Mouse for a few more years?

Lots of ways. The Wind Done Gone is a good example - someone who was playing within the system was cheated of their livelihood so that a couple of heirs - who did not create or produce anything - could get a government grant of something they do not own, deserve to own, or benefit the economy in any way by owning - more years to make money off copyrights.

Put another way, things that are X years old belong to the public - it's called the public domain. So by protecting Mickey for a few more years, Disney is actually stealing a common good and giving nothing back. They are stealing fundamental freedoms - the freedom to speak, make murals for elementary schools, draw cartoons - and offering nothing in return. They are getting a government-created monopoly that takes freedom, economic opportunity, and artistic opportunity from all of us, and they give nothing back. Unless you consider money-making incentives to dead people to be an economic stimulus of some kind.

I don't mind devil's advocates because I believe all positions should be discussed thoroughly.

In this case, the "adequate return" argument is easily defeated: Businesses use an Internal Rate of Return (IRR), External Rate of Return (ERR) or some other form of discounted cash-flow analysis (Net Present Value) to decide whether an investment is worth making. Typically, the interest rate used (hurdle rate) is 10-20%. With this interest rate, any revenues in the out years (say 20+) get discounted to insignificance.

The result is the length of time does not impact the decisions to invest [create] using modern methods of financial analysis.

...maybe it's because I am not a USian, but why are the authors of the US constitution referred to as the "framers". Isn't that a tad over-dramatic?

Dramatic? I'm not sure where the drama comes from.

I always took the term to mean that the U.S. Constitution is a living document. We alter it with amendments to reflect moral and social changes that the original authors could never have anticipated. These original authors created a "framework" that provided basic rights, established branches of power, and provided a way to ensure that the document could always grow to reflect the changing values of the society which it governs.

So over the years, the Consitution has had a lot of "authors" who have written various bits and pieces of it. But the original authors provided the framework to allow this to happen. Hence, "framers".

So far most arguments (mine included) based on this line in the constitution center on the word, "limited>'

For a moment, take a look instead at the phrase starting with the word, "promote...". IMHO, the original intent here was to supply the artist or inventor with a reasonable reward for the effort and investment of invention. The current copyright situation has completely distorted that goal, and I would argue that it is retarding "progress of the... Arts."

Essentially, long copyrights places artists in competition with all artists whose copyrights have not yet expired. This non-expiry means that they share shelf-space, stamping and packaging priority, etc, with a HUGE number of works. In essence, they're drowned in the crowd. The ones who "make it" are frequently 'sponsored' by the big labels - I liked someone else's comparison to Soviet Planning. But musical artistic emergence based on pure merit is rare. Perhaps thinning the ranks of commercial music by expiring copyrights would allow newer artists a better opportunity to shine.

In tactical deference to Disney, I wouldn't mind some sort of policy to allow extensions for 'maintained series', so they can keep their silly Steamboat Willie, as long as they keep adding to the Mickey Mouse franchise in significant ways. But don't take down the concept of public domain just to protect Mickey.

It is interesting to see Lessig speak in person. I saw him last fall and he very carefully traced the evolution of the notion of limited time cited in the parent post. The first notion of limited time was the author's life plus a little bit. The first revisions to this were few and far between but throughout the 20th century the 'limited time' became longer and longer and revised more and more often, culminating with the 'Sonny Bono' act which extends copywrite to basically 2+ generations.

I found it to be a pretty compelling, well-articulated case. Obviously Wired has tapped into this as well as their new issues sports a little Disney magic on the cover. Lessig also makes an interesting comparison between the so-cal/Disney ideas about intellectual property and the plantation culture of the 1800's...the benevolent masters who know what is best for those they care for. These ideas shouldn't be very foreign to most on in this community...look at most of the institutions that the/. community objects to, do you think that Microsoft has a problem with Mickey Mouse kept on a short leash, given the options they will have a result?

It seems to me what Lessig does is give an articulate voice to what most of us feel anyway at the same time he has the tools and research to back up what most of us feel is off kilter to begin with....

For crying out loud. You can't go telling someone that they have some type of inherent right and then turn arround and expect them to never to try and secure that right. If you allow any copyrights at all, then people are always going to try and drive it to it's logical conclusion that we are seeing today. The treatment of copyrights not as an incentive but a property.

This has happened before in American history too. Renember how slavery started out as indentured servitude. It was short term, not inherited, deeded people private property, and for blacks and whites. However, a few hundred or so years later, there were still large numbers of smart people who thought that throwing out slavery all together was too radical. That the slave states could get along with the free states. That the problem wasn't the idea of slavery, but how slaves were treated. Many people who hoped that inventions like the cottin gyn would provide the justification to elminiate slavery were heart broken to find that was rather used to leverage it's expansion over 100 times more.

Today the same is true with copyrights. A copyright that grants any imposition on free copying is just that, an imposition that now days is just not acceptable anymore. However, even more so - like in the history of slaves, a limited copyright is a foolish proposition, because it is not for us to decide. We can only react to how hard they'll push it, and every evidence is that they are willing to push it all the way.

You're saying that if we set the length of copyright to 5 years, then artists and publishers will push to make it 10 years. By that logic, if we remove copyright, then artists and publishers will push to bring it back. What's the difference?

Lessig has it completely right. We need copyrights that are neither too long or too short. At either extreme, you're stifling innovation. It seems pretty obvious to me that having reasonable copyright laws provides more incentive than having no copyright laws.

You're saying that if we set the length of copyright to 5 years, then artists and publishers will push to make it 10 years. By that logic, if we remove copyright, then artists and publishers will push to bring it back. What's the difference?

The difference is that by allowing any type of copyright, you are in effect saying that the problem isn't copyrights in general, but how they're applied. This is not true. The problem *is* a publuc belief in copyrights. The philosophy that people are somehow entitled to own and controll information is the root of all these problems.

You can bet your bottom dollar that this is what the people in hollywood believe, and that they intend to, and will, force it until their methods are rendered powerless. Anything other than getting rid of copyrights - will allow their current business model to stay in place, and set the stage for this to happen all over again. If I am going to half to fight this battle, let it be once and for all.

Perfect protection kills innovation, just as the perfect absence of protection kills innovation.

This reminds me of a section of Murray Gell Man's excellent book The Quark and the Jaguar [amazon.com]. Gell Man is discussing complexity, and describes how for a wide variety of "complex adaptive systems" (including evolution) there is an optimal amount of complexity -- enough randomness to serve as raw material, but not so much randomness that any meaningful patterns are destroyed before they form. A kind of "sweet spot" in the continuum of complexity from minimal complexity (a string of bits, all 0s) to maximal complexity (a totally random string). Gell Man defines all this quite formally, and I'm not doing him justice. Go read the book.

I don't think it would be much of a stretch to apply some of Gell Man's ideas about complex adaptive systems to a community of artists working within an environment (i.e., their society/culture, including legal restrictions).

I wish I had the book here with me, as I'm being very tentative because I don't want to misquote or misconstrue him.

Assuming that that's true... How does clerking for a conservative justice make you a conservative? If he had worked for some small conservative activist org your argument might make sense, but Supreme Court clerkships are so prestigous that politics are likely to be set aside by applicants. As well they should be, since the Supreme Court is ostensably neither conservative nor liberal. Lessig and Scalia were both obligated to determine constitutionality, so the clerkship really says nothing about his leanings.

None of you get it. I'm as open minded as the next guy, but Slashdot and Salon are obsessed with Lessig. Surely there are other law professors and/or academics with an opinion on these subjects. Let's hear from them and let's hear both sides of the story. Let's have an open call for law professors and/or academics who will defend the status quo and agree to be interviewed on Slashdot. I doubt it will happen. Who is it that only wants to listen to ideas that conform to their own?

Did you see Harry Potter? Is it possible that you are falling into the error of Uncle Vernon, who attempts to destroy the invitations addressed to Harry, ultimately resulting in a massive DoS to his house as invitations thunder in by the millions? Are you scornfully discarding a series of invitations from the internet? Perhaps Lessig is interesting because he has struck a nerve, put his finger on the core issue of our time.

Good luck in finding an intelligent advocate of the status quo. I think you'll find that anyone who seriously defends the existing system does so for money, not because he believes in it.

Everyone knows who Gorbachev is, but can you name some of the prominent adversaries of glasnost? Does anyone care?

There is a deep cynicism about managed culture, and this is our modern popular culture. A kind of sovietism that worked

LL has a true gift for langauge. Younger readers may not be aware just how tightly managed the Soviet Union was. The production of everything was strictly controlled by a series of Five Year Plans [encyclopedia.com] that attempted to match supply to predicted future demand. By "everything", I mean that the number and colour of toothbrushes that would be produced was planned on a five year basis.

Picture this from the populace's point of view. You go to buy a new toothbrush. You quite fancy an orange one, but all they have is blue. Everyone else is buying blue toothbrushes, so, hey why not? One toothbrush is much like another, right? They're all just cheap mass manufactured plastic that'll be old in six months, so you might as well buy what they've got. You quickly get used to it. In time, you stop even wondering what an orange toothbrush - or a non-Government toothbrush - would be like.

Compare with the US music industry. You go to buy a CD... you see where this is going?

Big labels plan years in advance. They produce acts to fit the niches that they have decided there will be demand for. If there isn't demand for those acts, well tough, that's all there is on the shelves, and they aren't going to change their CD pressing schedules to suit you. That would play merry hell with their smooth profits. They know they're getting your money, because all the artists are just cheap mass manufactured plastic that'll be old in six months, so you might as well buy what they've got. You quickly get used to it. In time, you stop even wondering what an independent artist would be like.

If you don't believe that labels plan that far ahead, look at Mariah Carey. She has a five album 80 million US dollar deal. Despite suffering an "emotional and physical breakdown" and releasing a film and album that both tanked, EMI has not canned her [yahoo.com]. They can't. They have a Five Year Plan. We will love Mariah, and we will buy her albums, because they will make damn sure that when the next album comes out, they'll have cut a deal to ensure that no big name from any other label will release at the same time, and the advertising will be Mariah, Mariah, Mariah.

Or so they think. The trouble with their Five Year Plans is the same as in the Soviet Union. The people aren't stupid. They know what kind of toothbrush they want. If they can't get that, then they'll take what's available. But when the non-Government toothbrushes become available on street corners, even though it's illegal, they'll buy them, and they'll tell their friends where to get them, and a black or grey market will spring up to supply the genuine demand, and the Five Year Plan is suddenly in disarray because all the cheap plastic government approved toothbrushes are sitting in factories and nobody wants them any more.

At this point, the analogy breaks down because it's comparing sharing with purchasing. The toothbrush analogy is very immediate, but if you want a better history lesson of why monolithic government/industry content control is doomed from the get go even if abominations like the SSSCA are passed, then read about samizdat [ualberta.ca], and understand that We, the People will find a way.

Geez, so don't buy Mariah Carey. I'm sure plently of people like her, and so they'll buy her stuff, if it doesn't suck. If people like the bands from the big-name labels, they'll buy them, otherwise they won't.

No band is forced by the government to join a big record label! Or any record label at all. If they want to make their music freely available on their web site, they're more than welcome to. But most bands think that they'll reach more people with their music, and make more money, by signing with a label, so they choose that route. Nobody is censoring any band. That's why the soviet analogy is compeletely irrelevent.

So, what you're saying is that if a band wants the services of a record label, they have to sign a contract with that label, agreeing to certain things. That's your definition of being "forced"?

What's your solution - the record company shouldn't be allowed to make bands sign any kind of contract? Or the government should regulate these contracts to make sure that, in your opinion, they're fair? How about this for a solution - you shouldn't sign a contract you don't understand, or don't think is fair. In other words, you should be accountable for your actions. Oh wait, that is how things work now...

And don't forget who pays for the airplay. The labels, of course. Even though they were prohibited from doing so by the so-called "payola" laws, they have simply added a layer of middlemen so that the payments don't come directly from the labels anymore. These middlemen decide what gets airplay, and they are paid by the labels.

"Forced" isn't the right word -- but it sounds like pre-internet there were very few alternatives for someone who wanted to make a living performing music, except for about five companies all offering pretty much the same contract. This really sounds like a case for anti-trust enforcement, but (a) you knee-jerk libertarians don't believe in that either, and it never seems to be actually effective in cases like this, where several companies just imitate each other's policies. They don't actually collude, but you can't find a different deal anywhere in the market. True, in the long run cartels like this will crack, but people have to find work and buy their necessities _now_, not wait for someone else to enter the market with a different deal.

To take one prime example where America has left us almost choiceless: who did you vote for in 2000, Gore because he planned to take away economic freedom, or Bush because he planned to take away other freedoms? I voted for Harry Browne -- but as far as affecting the leadership of the US goes, that is as effective as not voting at all.

Hehe, yeah, I dunno, but a close friend of mine grew up in Eastern Germany, and after studying three years of International Business in Florida, he said that the US is the biggest Communist state in the world.

The only difference is that the beaurocracy is privatized, but the people at the bottom is still scared shitless by being fired, they can't think by themselves, because they have bosses orders. And you can't get anything done, because there are always people going after everything you do.

Yeah, and there are pretty strategies worked out by the people on the top, who has really no clue whatsoever what's happening on the bottom.

The only difference is that people weren't just disappearing, but that's about to change too...

The reason Communism failed is that there were other countries which did better and could starve them out. [...] In the past, tyranny required some outside impetus before it died

Not to lapse into flag waving hyperbole, but who were the instigators of the American Revolution emulating?

I choose to think that when you turn the screw too hard, Joe Public will bite back... eventually. In many ways, the popularity of P2P services (not Napster!) shows that the populace is no longer willing to play by the rules that the RIAA/MPAA have set up to protect themselves. If a confrontation is forced through an SSSCA, I think - I hope - that Joe will see it for what it is: a bare faced attempt to apply "guilty until proven innocent" to ever man, woman and child in the USA and (de facto) any country that buys US spec hardware. It may be a gentle revolution when it comes, but I think it will come, if the RIAA/MPAA forces it.

Peter Wayner said:
Maybe AOL should just roll all of that music into the extra content provided by the monthly subscription price?

Unfortunately it's not this easy. AOL/TW only owns the mechanical rights to their works. However, there is another component to copyright called publishing rights. In order to deliver content in a legal manner over the internet, one needs to obtain both mechanical and publishing licenses.

Who owns the publishing rights? Publishing is a huge hornets nest. There are literally thousands of small groups that own the publishing rights, most of which are represented by the Harry Fox Agency.

The crux of the issue is that it's a total nightmare to obtain publishing licenses from Harry Fox. Harry Fox barely knows what licenses they represent, and in order to grant a publishing license they have to obtain written permission from one of the thousand small publishers that own the license.

Not only that, but sometimes publishing licenses can be issued for only geographic regions so that publisher A owns the rights for North America while publisher B owns the rights for Europe. This is a huge pain in serving music legally over the internet because if you get permission from B but not A you have to figure out the geographic location of all of your subscribers.

So when it's all boiled down, even the copyright holders themselves can get around the legal quagmire that they've constructed to protect their business models.

It's not just Hollywood and the music industry. In a capitalist digital information age, everything becomes an commodity alienated from its creator and exchanged in world trade for the profit of large corporations in the wealthy countries.

Examples abound. The New York Times today reports [nytimes.com] (free subscription required) that U.S. fish farmers successfully lobbied for protection against Vietnamese imports by arbitrarily defining the word "catfish". Now Congress has propertized that part of our common English language and given it away to its campaign contributors.

I hold out no hope for Congress and the courts to change copyright law and promote innovation in the wise ways Lessig proposes in his new book. It seems to me instead that we consumers face the choice of allowing complete control, or of violating these laws and engaging in massive piracy a la Napster, only better technologically.

Last time this came up (copyrights and such) I started searching the internet. I found the Thomas Jefferson archives. Started searching for his thoughts on copyrights, etc. Very interesting reading. Do the search yourself, I believe he had some interesting thoughts that are still very applicable today.

"It would be singular to admit a natural and even an hereditary right to inventors... It would be curious... if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody... The exclusive right to invention [is] given not of natural right, but for the benefit of society."

PW: But I would argue that the protectionism even hurt the British publishers too. I think it's kind of odd for a small country with a different official language to have such a large presence in English language publishing.

I thought Peter Wayner's questions were vastly for insightful than the answers. Dr. Lessig was just trying to beat the one theme of his book and wasn't even listening (reading) what was said. Mr. Wayner was trying to show a relationship between rEdicuous copyright and other legal trends, but his subject didn't want to talk about anything except the DMCA as it applies to the cases he's been involved with.